A. Interference with Persons
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A. Interference with Persons
1. Assault and Battery
a. Elements of the Causes of Action
While assault and battery are often uttered in one phrase and have been described as going together like "ham and eggs,"30 they involve two separate torts. Assault occurs when a reasonable apprehension or fear of bodily harm has been intentionally caused by the defendant's conduct.31 Battery is the actual infliction of any unlawful, unauthorized "violence" upon or touching of the person of another, regardless of degree.32 One can, of course, create the apprehension of bodily harm without subsequent touching.33 Similarly, one can commit a battery without also engaging in assault—for example, by hitting a sleeping person.
(1) Assault
The tort of assault has two elements.34 First, assault involves conduct on the part of the defendant that puts the victim in reasonable apprehension of immediate harmful or offensive touching. Second, the defendant must intend the conduct involved. Though consent is sometimes viewed as a defense, a prudent plaintiff should plead and be prepared to show lack of consent.35 There is no requirement of actual damages, and the plaintiff may recover nominal damages so long as he suffered the required apprehension.36
Mere words, even if they are foul language, expressions of anger, or threats conditioned on situations contrary to present fact, normally do not satisfy the first element of assault, however insulting such words may be.37 Similarly, unwanted offers of amorous attention do not constitute an assault.38 These situations do not involve an assault because this tort requires that an offer or desire to inflict unwanted contact upon the plaintiff must be accompanied by facts indicating both the ability and intent to execute the threat.
In determining whether the circumstances are sufficiently threatening, the victim's situation is generally viewed from the point of view of the "reasonable victim."39 There must be just and reasonable ground for the fear; hence, a vain or idle threat is not sufficient. It must be of such nature and made under such circumstances as to affect the mind of a person of ordinary reason and firmness, so as to influence his conduct; or it must appear that the person against whom [the threat] is made was peculiarly susceptible to fear, and that the person making the threat knew and took advantage of the fact that he could not stand as much as an ordinary person.40
In contrast, the defendant's position is measured by a subjective test, and it must be shown that he intended: (1) to commit the act which caused the apprehension; and (2) either to cause the apprehension or to commit a harmful or offensive touching.41 It is not necessary to show that the defendant intended to harm the victim.42
Though mere words by themselves do not ordinarily satisfy the requirement of putting a person in fear of imminent physical harm,43 the victim of abusive words may be entitled to a claim other than assault. For example, it has been held that a common carrier is liable in damages for abusive language addressed to a passenger by the carrier's servants, the ground of the liability being the special relation between carrier and passenger and the resulting duty of courteous and respectful treatment owed to the latter.44 In addition, recent cases indicate that outrageous verbal attack, not constituting technical assault or some other tort, may involve the tort of intentional infliction of mental distress.45
(2) Battery
Battery has two elements: (1) a harmful or offensive touching without consent;46 and (2) the intent to commit the touching or to cause an apprehension of such touching.47 The intent needed to establish liability for battery is like that needed for assault.48 No physical injury is required for battery, the least touching is all that is needed; nor, from a technical viewpoint, need there be an apprehension of contact.49 Battery has also been found to occur when the unwanted touching is to persons or property within plaintiff's immediate custody or possession, i.e., to "things partaking of the personal inviolability."50
If the offensive, unauthorized touching of the plaintiff occurs while the defendant is in the performance of a lawful act, then the defendant will not be liable unless the plaintiff can show malice, willfulness, or a specific wrongful intent on the defendant's part, or the defendant uses force that is excessive under the given circumstances, as in otherwise lawfully disciplining a pupil.51 Not every laying on of hands on another constitutes a battery.
On the other hand, if the defendant is in the course of an unlawful act, the intent to commit this unlawful act will be sufficient.52 Thus, for example, a defendant cannot escape liability for battery by stating that his intent was only to create apprehension and not to make physical contact, even though such contact resulted.53
Given an intentional contact that is not physically harmful, the test for determining whether a battery exists is whether the contact would be offensive to an ordinary person not unduly sensitive as to personal dignity.54
(3) Transferred Intent
The doctrine of "transferred intent" provides that an assault or battery directed toward one person that miscarries and harms another is "malicious" as to the latter even though the defendant meant otherwise.55 On the other hand, even though it may seem unfair to the unintended victim, if one is justified in shooting at one person, as in self-defense, he does not commit a battery if an unintended person is struck.56
b. Defenses
As indicated in the Introduction, charitable immunity57 and workers' compensation exclusivity58 can apply to a claim for an intentional tort. However, though the Tort Claims Act would limit the amount of liability because the Tort Claims Act only bars suit for employee conduct which involves "actual malice" or "intent to harm," it probably would not bar suit for assault or battery against a government entity because these torts do not require malice or intent to harm.59
(1) Actual Consent
Prosser states:
Consent ordinarily bars recovery for intentional interference with person or property. It is not, strictly speaking, a privilege or even a defense, but goes to negative the existence of any tort, in the first instance.60
Whether lack of consent is an element of the cause of action, as seems technically correct, or whether consent is a matter of defense may be debated. As a practical matter, the prudent plaintiff will allege lack of consent, but the careful defendant will present the issue of consent in defense on the ground that consent to be touched will invalidate an action for assault or battery.
Consent must be voluntary.61 In Gathers v. Harris Teeter Supermarket, Inc.,62 the plaintiff had been mistaken for a shoplifter and had been detained and searched. The court of appeals did not disturb the jury finding that the consent to be searched was a product of coercion and duress in that the plaintiff was afraid she would be taken to jail if she refused. The court upheld the action for assault and battery.63
Consent issues often arise in the medical area within the context of the need for an "informed consent." However, the more complex issues in this area are more appropriately questions involving medical malpractice under the law of negligence.64 This framework for analysis is preferable because an informed consent action is based on a failure by a physician to make proper disclosure when obtaining consent from a patient and focuses on whether the physician departed from the standard of care of the reasonable medical practitioner.65 South Carolina has refused to recognize medical battery as an independent cause of action due to the availability of a medical malpractice claim or a civil battery claim.66 Medical battery would constitute an unnecessary and superfluous cause of action where medical malpractice already covers tortious injuries arising out of the performance of medical services and a civil battery cause of action lies where the offensive touching occurs outside the medical scope.67
A further illustration of the strategic interplay between battery and negligence is Andrews v. United States,68 in which the plaintiff-patient sued for medical malpractice under the Federal Tort Claims Act (FTCA) for the actions of a government-employed counselor who had convinced plaintiff that the best course of treatment was to engage in sexual intercourse with him. To avoid liability for negligence the defendant attempted to establish assault and battery in order to have the action dismissed under 28 U.S.C.A. § 2680(h), which excepts an assault or battery from the FTCA. The federal district court, happily for the plaintiff, did not find assault or battery, stating "Mrs. Andrews consented to engage in sex with Gee because she was induced to believe that it was the best course of treatment for her. Hence, the Andrews' claim did not arise out of an assault or battery."69
Andrews, perhaps because of its unique FTCA aspects, is not consistent with the general rule adopted in such cases. Generally, fraudulent consent is not a valid consent, even in cases of sexual contact except in cases where the plaintiff is aware of the nature of a sex act but is defrauded by a collateral promise, such as a fraudulent promise of marriage.70
(2) Implied Consent, Privilege, and Authorization
Closely related to consent is the privilege to act in circumstances in which consent is implied or deemed irrelevant. Thus, there may be a privilege to act on behalf of another who requires assistance but is incapable of rationally giving or withholding consent. For example, when a person is given medical or rescue treatment in an emergency, no battery is committed if a reasonable person would have consented to such treatment.71
Authorization to act may also be based on one's office or status. For example, a person may be authorized to impose discipline...
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